Opinion
20-7064 20-7072
11-01-2021
PERRY CLINE, on behalf of himself and all others similarly situated, Plaintiff - Appellee, v. SUNOCO PARTNERS MARKETING & TERMINALS L.P.; SUNOCO, INC. (R&M), Defendants - Appellants. THE CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA; PETROLEUM ALLIANCE OF OKLAHOMA; OKLAHOMA CHAPTER OF THE NATIONAL ASSOCIATION OF ROYALTY OWNERS, Amici Curiae.
D.C. No. 6:17-CV-00313-JAG (E.D. Okla.) 1
Before TYMKOVICH, Chief Judge, MATHESON, and PHILLIPS, Circuit Judges. [**]
ORDER [*]
PER CURIAM
Sunoco, Inc. (R&M), and Sunoco Partners Marketing & Terminals, L.P. (collectively "Sunoco"), appeal the district court's judgment and orders in favor of a plaintiff class that sued Sunoco for failure to pay interest on late oil proceeds payments under the Oklahoma Production Revenue Standards Act, Okla. Stat. tit. 52, § 570.1 et seq. The district court awarded the plaintiff class over $155 million in actual and punitive damages. It also issued a plan of allocation order to divide and distribute the damages. Sunoco appealed. We dismiss these consolidated appeals because Sunoco did not meet its burden to establish appellate jurisdiction.
I. BACKGROUND
A. Legal Background
"[T]he appellant . . . has the duty to establish the existence of this court's appellate jurisdiction." Vette v. K-9 Unit Deputy Sanders, 989 F.3d 1154, 1161 (10th Cir. 2021). "It is the appellant's burden, not ours, to conjure up possible theories to invoke our legal authority to hear [its] appeal." Raley v. Hyundai Motor Co., 642 F.3d 1271, 1275 (10th Cir. 2011).
Further, under the Federal Rules of Appellate Procedure,
[t]he appellant's brief must contain . . . a jurisdictional statement, including . . . the basis for the court of appeals'2
jurisdiction . . . and . . . an assertion that the appeal is from a final order or judgment . . . or information establishing the court of appeals' jurisdiction on some other basis.Fed. R. App. P. 28(a). "It is indisputably within our power as a court to dismiss an appeal when the appellant has failed to abide by the rules of appellate procedure . . . ." MacArthur v. San Juan Cty., 495 F.3d 1157, 1161 (10th Cir. 2007).
B. Sunoco's Briefing
Sunoco filed four briefs arguing or implying we lack jurisdiction.
First, in September 2020, Sunoco asserted "the District Court's Judgment Order is likely not a final judgment under 28 U.S.C. §[]1291, absent this Court revisiting Strey [v. Hunt International Resources Corporation, 696 F.2d 87 (10th Cir. 1982)] and Cook [v. Rockwell International Corporation, 618 F.3d 1127 (10th Cir. 2010)] in light of the Supreme Court's decision in Tyson Foods[, Inc. v. Bouaphakeo, 577 U.S. 442 (2016)]." Aplt. Mem. Br. at 9, Cline v. Sunoco Partners Mktg. & Terminals L.P., 2020 WL 8632631 (10th Cir. 2020) (No. 20-7055), ECF No. 10771954. Second, in November 2020, shortly after the district court issued its plan of allocation order, Sunoco asserted that the plan of allocation order "may not result in a final, appealable judgment." Aplt. Suppl. Mem. Br. at 4, Cline, 2020 WL 8632631 (No. 20-7055), ECF No. 10782938. In a related earlier appeal (No. 20-7055) filed before the district court issued its plan of allocation order, Sunoco filed two briefs in response to this court's order to address the finality of the district court's judgment. Neither said we had jurisdiction.
First, in November 2020, Sunoco argued "[t]he District Court's Plan of Allocation does not result in a final, appealable judgment." Aplt. Mem. Br. at 1.
Second, in December 2020, Sunoco argued "there is yet no final judgment." Aplt. First Suppl. Mem. Br. at 3. 3
That same day, Sunoco filed a status report, which asserted that "the appeal should continue to be abated until this Court rules on whether there is a final, appealable judgment in this case." Doc. 10792010 at 1. Sunoco also stated that language from the district court's opinion denying its post-judgment motions "creates uncertainty on the finality-of-judgment question." Aplt. First Suppl. Mem. Br. at 3.
Third, in March 2021, Sunoco filed its merits brief with the following jurisdictional statement:
There was jurisdiction for this class action. 28 U.S.C. §1332(d). This Court ordered the parties to file memoranda on whether there is a final, appealable judgment. After those memoranda were filed, this Court ordered that the finality-of-judgment issue will be carried with the appeal.Aplt. Br. at 15.
Fourth, in October 2021, after reviewing the parties' filings, this court ordered the parties to address: (1) "[w]hether the Sunoco appellants have met their burden to show why the court has appellate jurisdiction?" and (2) "[i]f Sunoco has failed to meet this burden, what action should the court take?" Doc. 10865486 at 2. In response, Sunoco argued "there is appellate jurisdiction if this Court takes the actions requested . . . to ensure finality of the judgment." Aplt. Second Suppl. Mem. Br. at 10.
Sunoco also said that, "[u]pon further reflection," the district court had clarified the plan of allocation order's principles for distributing unclaimed funds, and this was "adequate for a final judgment." Aplt. Second Suppl. Mem. Br. at 5-6. But, Sunoco said, this clarification does not extend to the division of damages for unidentifiable class members, which, it contends, is a finality requirement that has not been met. See id. at 6-9.
II. DISCUSSION
Sunoco has not met its burden to establish our jurisdiction. Indeed, it has argued the opposite. Sunoco filed four briefs arguing or implying we lack 4 jurisdiction because the district court's plan of allocation order does not result in a final, appealable judgment. See Aplt. Mem. Br. at 1; Aplt. First Suppl. Mem. Br. at 3; Aplt. Second Suppl. Mem. Br. at 10. Nor does the jurisdictional statement in Sunoco's opening merits brief invoke a basis for our appellate jurisdiction. See Aplt. Br. at 15.
Sunoco's latest brief, rather than argue we have appellate jurisdiction, suggests we resolve the remaining finality issue regarding unidentifiable class members by (1) determining first, before addressing finality, that unidentifiable class members lack standing; or (2) directing the district court to modify its orders. See Aplt. Second Suppl. Mem. Br. at 9-10. Neither suggestion states we have appellate jurisdiction and neither has merit.
First, as to the standing of unidentifiable class members, "[o]n every . . . appeal, the first and fundamental question is that of jurisdiction, first, of this court, and then of the court from which the record comes." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998) (quotations omitted). "Thus, the question of this Court's jurisdiction (i.e., our appellate jurisdiction) is antecedent to all other questions, including the question of the subject matter [jurisdiction] of the District Court." In re Lang, 414 F.3d 1191, 1195 (10th Cir. 2005) (quotations omitted); see also United States v. Springer, 875 F.3d 968, 973 (10th Cir. 2017). We cannot address questions of standing if we lack appellate jurisdiction. 5
Although "a federal court has leeway to choose among threshold grounds for denying audience to a case on the merits," Sinochem Int'l Co., Ltd. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 431 (2007) (quotations omitted), as Steel Co., 523 U.S. at 94, Lang, 414 F.3d at 1195, and Springer, 875 F.3d at 973, explain, an appellate court must first consider appellate jurisdiction.
Second, Sunoco attempts to shift the burden of establishing appellate jurisdiction to this court by asking us to "give directions to the District Court." Aplt. Second Suppl. Mem. Br. at 10. It cites no authority to support this approach. Instead, Sunoco asserts "there is appellate jurisdiction if this Court takes the actions requested . . . to ensure finality of the judgment." Id. at 10 (emphasis added). But that conditional assertion does not show we have jurisdiction. Sunoco, not us or Appellee Cline, must "conjure up possible theories to invoke our legal authority to hear [its] appeal." Raley, 642 F.3d at 1275. Sunoco did not pursue the options available to it to establish appellate jurisdiction. "Where an appellant fails to lead, we have no duty to follow." Id. 6
Earlier in its brief, Sunoco quotes Pritchett v. Office Depot, Inc., 420 F.3d 1090, 1093 (10th Cir. 2005), for the rule that "federal courts always have jurisdiction to consider their own jurisdiction." Aplt. Second Suppl. Mem. Br. at 6. But that rule does not explain how we have authority to direct the district court to address finality concerns about our appellate jurisdiction.
If, as Sunoco repeatedly argues, the district court has not issued a final, appealable judgment, Sunoco had at least four ways to attempt to invoke our jurisdiction. It pursued none and fails to explain why not. Sunoco could have:
(1) Asked the district court to certify an interlocutory appeal under 28 U.S.C. § 1292(b);
(2) Attempted to invoke the collateral order doctrine exception to 28 U.S.C. § 1291's final judgment rule, see, e.g., Henderson v. Glanz, 813 F.3d 938, 947 (10th Cir. 2015);
(3) Filed a petition for a writ of mandamus for the district court to enter final judgment, see, e.g., United States v. Clearfield State Bank, 497 F.2d 356, 358 (10th Cir. 1974) ("Appellant . . . filed a notice of appeal, and, on the theory that the court's orders were not final and therefore non-appealable, also filed an application for a writ of mandamus . . . to require entry of final judgment."); or
(4) Asked us to "constru[e] the appeal as a petition for a writ of mandamus," Boughton v. Cotter Corp., 10 F.3d 746, 748, 750-51 (10th Cir. 1993); see also, e.g., Opening Br. of Aplts. & Cross Aplees. at 4, Cook, 618 F.3d 1127 (Nos. 08-1224, 08-1226, 08-1239), ECF No. 9640935 ("[I]f this Court were to conclude that it lacks appellate jurisdiction here, [appellants] respectfully urge this Court to treat these fully briefed appeals as petitions for mandamus . . . .").We do not address whether any of these options would have established our jurisdiction. Nor do we address whether we have sua sponte authority to construe this appeal as a petition for a writ of mandamus. Moreover, we have "discretion to decline to consider waived arguments that might have supported . . . jurisdiction." Tompkins v. United States Dep't of Veterans Affs., __ F. 4th __, 2021 WL 4944641 at *1 n.1 (10th Cir. 2021) (quotations omitted); see also Colorado Outfitters Ass'n v. Hickenlooper, 823 F.3d 537, 544 (10th Cir. 2016) (same).
III. CONCLUSION
Sunoco has repeatedly argued that we lack jurisdiction. It has not therefore met its burden to establish appellate jurisdiction. We thus dismiss these consolidated appeals. See Stephens v. Jones, 494 Fed.Appx. 906, 908 (10th Cir. 2012) (unpublished) (cited for persuasive value under 10th Cir. R. 32.1 and Fed. R. App. P. 32.1) (dismissing appeal of two orders for failure to prosecute where appellant "presented no argument, in either his jurisdictional brief or his merits briefs, regarding our jurisdiction over" two of the three orders he appealed); see also E.E.O.C. v. PJ Utah, LLC, 822 F.3d 536, 542-43 & n.7 (10th Cir. 2016) (dismissing 7 part of appeal for lack of jurisdiction and declining to address collateral order doctrine because appellant had burden to, and did not, invoke the doctrine). 8
We do not address whether the district court's plan of allocation order resulted in a final, appealable judgment.
[*] This order is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
[**] After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of these consolidated appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.